The Bismarck Tribune Newspaper, January 28, 1935, Page 7

THE BISMARCK TRIBUNE. MONDAY, JANUARY 28, 1935 , " Here’s Respondent’s Brief in the Moodie C Contends Governor 18 Am. 8. R. 896. IN ALYSIS OF R i ( T cae who were closely in lof her faith, in fact several of them, | registered and voted in Minnesota in| residence in another state. Legalphe and his family lived ’ Welch vs. Shumway, 232 Il. 54, 78: touch with the newspaper situation in Minneapolis, which she attended | 1930, and he believed that every pa-| residence consists of act and inten-|1 nine mon! Cannot Meet Test | Y Bas owing 83 NE 549. in North Dakota, and that he had no | constantly. jtriotic citizen should exercise his, tion, and when once fixed it requires|children attended Of N. D. Basic Law Upon going to Williston Mrs. | right of franchise. | ‘olis but had the firm purpose of re- Sparks vs. Sparks, 114 Tenn. 666; [intention of remaining in Minncap- | both act and intention to change it. (Continued from Page Six) 88 SW 173, ‘this manner is the “highest evidence” of intent to establish domicile. 19 0. @. 431 and = seo! 187 Cal. ‘204; 200 Pac. 931. State vs. Stoelting, 53 N. D. 736; 208 NW 101 (Supra 18). Chambers vs. Hathaway Appeal from the determination in } Rehereteerd for the collection of in- tance tax. |, Decree in favor of their collection fn California reversed. Appeal in this case was brought upon the sole question of whether there was sufficient evidence to sus- tain the holding of the lower court that the domicile of the deceased was in California. The facts were that the deceased was a wealthy man, and had a business and a home fn Milwaukee, Wisconsin, as early as 1884: That his wife died in 1899; that he had gone to California for « Beveral months of each year after ; that he purchased a home in California in 1912, when at the age of eighty years and retained his home fn Wisconsin. The court then says: “It is apparent therefore, that the facts make a case where a person thas two residences, either of which might be his lawful residence accord- fng to his intention.” Tt is then indicated in the opinion that one evidence of intention was the declaration of the deceased for the purpose of registering as a voter of California, as he was qualified to do at that time, if he intended that (California should be his domicile. ‘The form of that declaration was an affidavit made for the registration authorities in which he stated that his residence was in Pasadena, Cali-| ¢, fornia, for the required statutory pe- riod of time. The registration form showed no vote was subsequently cast by the deceased. “This affidavit constitutes de- Claration by Finney (the decedent) that at that time his residence was (nd) Rob! Stall vs. Williams’ Admr. 26 8W 8 (Ky). inson vs. Paxton, 210 Ky. 575; 276 SW 500. Hodges vs. Murray, 240 Ky. 177; 41 SW (2nd) 923. Gilbert vs. David, 235 U. 8. 560; 58 L. ed. 360. In Re Dorrance’s Estate, 309 Pa. 151; 163 A. 303, Berry vs. Wilcox This was an election contest in which the votes of seventeen students attending a university within the voting district were challenged. It was stipulated within the case that they were emancipated minors whose main purpose was to pursue a course of studies in that election district. There was no apparent intention to return to the homes of their parents, ‘but it was intended to seek employ- ment during vacations and after the completion of their course at such Places as they might find the em- Ployment. Their course of studies ‘was indefinite. Held: A residence was establish- ed as the students had abandoned their parents’ home and would reside in the election district for an in- definite period of time in this state. “The fact that he may at a future time intend to remove will not neces- sarily defeat his residence before he actually does remove. It is not nec- tion of always remaining, but there must co-exist the fact and the in- tention of making it his present abid- ing place and there must be no inten- tion of presently removing.” ‘This case is a much quoted author- ity which summarizes the earlier case law on the question and distinguishes Vanderpoel vs. O'Hanley, 53 Ia. 246;/of law will be simple when the issue| 36 Am. Rep. 216; Prey’s Election Case, 71 Penn. St. 302: 10 Am. Rep. 698 as foliowing the old rule that the in- tention must be one of “always re- Klutts vs. Jones This is @ challenge of a special|neapolis in August, 1929; (2) that he; election to decide the issuance of bonds by the school district which election resulted in a fifty-nine to fifty-eight vote in favor of issuing hat |the bonds. that was his legal residence at that time. If it had remained unexplain- ed by him and there was no evidence of a subsequent change of intention, ‘this, of course, would be sufficient to uphold the finding of the court.” (which finding in the lower court ‘was that the decedent’s residence ‘was in California). Several subsequent declarations show that this intention to establish @ domicile in California was subse- quently changed, and the court here held that the domicile of the dece- dent was in Wisconsin because of this demonstration of the fact of his in- tention to again make Wisconsin his domicile. Declarations: Weight and Suffici- Indicated Ush Domicile Lileagd vs. Cass, 27 N. D. 357; 146 Graham vs. Board of Education, 5 Dak. 259, 38 NW 433; Supra 12. McCarthy vs. Thornton, 38 N. D. 651; 165 NW 499, Supra 13. Graham vs. Graham, 9 N. D. 88, 81 NW 44, Supra 20. “Declarations alone cannot prevail ‘unless borne out by facts. More weight will be given to a person’s acts than to his declarations, and | S36r when they are inconsistent the acts ‘will_control.” 19 C. J. 441, “Where, however, the declarations of a party are inconsistent with his ects, they are not considered as high class evidence .... It has been held that a change of residence, clearly manifested as matter of law by acts, cannot be defeated by a subsequent declaration of the person that he did not intend his acts to have that ef- fect.” 9 RCL 558. Declarations of Indeterminate .or Floating Intentions to Return: Sufficiency of Such Intention to Show the Place of Domicile “Although an intention to remain permanently is mentioned as essen- tial in some decisions, an intention to remain permanently as distinguish- ed from indefinitely, is not necessary, nor need there be an intent to make the new place a permanent home for the remainder of one's life.” 19 CJ “When a person-has actually re- moved to another place, which is his fixed present residence, with an in- tention of remaining there for an indefinite time, it becomes his domicile, notwithstanding he may have a floating intention to return to his former domicile at some future and indefinite period. An intention to return to the former domicile et @ remote and indefinite period will not control, if other facts, which constitute domicile, give the new reai- dence the character of a permanent home or place of abode.” 19 CJ 407. “If a person has actually removed to another place, with an intention of remaining there for an indefinite time, and as a place of fixed present domicile, it is to be deemed his place of domicile, notwithstanding he may entertain a floating intention to re- turn at some future period.” Story, Conflicts of Law (8th ed.), p. 50. U, 8. vs. Chong, Sam, 47 Fed. 878. Anderson vs. Watt, 188 U. 8. 706; 84 Law Ed. 1078. Nelson vs. Cass, 27 N. D, 357; 146 NW 537. Sturgeon vs. Korte, 34 Ohio St. 825. Berry vs. Wilcox, 44 Neb. 82; 62 249. : Putnam vs. Johnson, 10 Mass. 488. Blutts vs. Jones, 21 N. M. 720; 158 Pac. 490. Pedigo vs. Grimes, 118 Ind. 148; The basis of the challenge is that @ school teacher who had been pres- ent within the district for the re- quired statutory period in order to vote had cast an illegal vote for the bond issue because she was not a resi- dent. The teacher was a self-sup- Porting adult who was under contract to teach for the school term. She testified that she did not intend to remain within the district if a better Position should become available inj the future. Held: Domicile of the teacher was established in the school district. The court relied on Berry vs. Wil- cox, and disagreed with the argument made that because of the teacher's intent to leave should # better posi- tion become available that she had no domicile. The court says that such | good an “extreme view” of the intent nec- essary in establishing domicile would find support only in the older cases. Were this the rule many persons who because of their employment were sent from place to place would never be able to vote, such as railway men and ministers. Brittenham vs. Robinson The question was here raised whether the mortgage involved was recorded at the residence of the mort- whom the court calls “mere adventurers in the oil fields of In- diana.” : These adventurers were held to have their residence place in Indiana where the mortgages were filed. “We conclude that it is not neces- sary that there shall be an intention to remain permanently at the chosen domicile. It is enough if it is for a time the home to the exclusion of other places.” Ludlow vs. Wilbraham The residence in question in P| Pauper case was that of a laborer who traveled about seeking employment where he might find it and which the court found would make his domicile at the place where he worked. “Such a man so situated, when he is laboring in one town with no other intention as to residence except to ‘have a home wherever he works, may well be deemed to live there with the purpose of remaining an indefinite perlod of time and thus would have there all the home he has anywhere, as much of a domicile as such a wan- derer can have.” 591 Sleeper vs. Pace “If his residence out of the Com- monwealth was but temporary, yet if the time of his proposed return was indefinite, he retained no domicile in the Commonwealth.” Barton vs. Irasburch “A mental purpose of return at a future indefinite time, when there is no particular home to return to, is not the animus revertendi that deter- mines residence.” (164) ‘Winans vs. Winans ‘This was @ divorce action in which the jurisdiction of the Massachusetts court was questioned. The ‘thusband’s for a house in a suburb. After two weeks he left Boston to visit his moth- er in Virginia and never returned to ‘The court found his domicile to be in Massachusetts since his presence MADE BY ATTORNEYS OPPOSED 0 OUSTER Hold Both Evidence and Law Indicate Governor Has Right to Stay in Office IN THE SUPREME COURT STATE OF NORTH DAKOTA The State of North Dakota, ex rel P. O. Sathre, Attorney General, Plaintiff. vs. Robert Byrne, Secretary of State; Berta E. Baker, State Auditor; Alfred S. Dale, State Treasurer; P. O. Sathre, At- torney General; Arthur E. Thompson, Superintendent of Public Instruction; consti- tuting the State Board of Canvassers of the State of” North Dakota, and Thomas H. Moodie, Defendants. DEFENDANTS’ BRIEF Issues Is the defendant, Thomas Moodie, stitution, which requires a residence in the state for “five years next pre- ceding the election”? This is a question of law and fact. | Perhaps it would be more correct to say that it is a question of fact, be- cause the application of correct rules of fact is settled. Statement of Facts We think the evidence shows con- clusively (1) that respondent had! established his legal residence in North Dakota before he went to Min- went to Minneapolis temporarily; (3) that he had no intention of estab- lishing his residence in Minneapolis or of giving up his residence in North Dakota; (4) that he did not while in Minneapolis, decide to make that city the place of his permanent residence, and (5) that he at all times had the intention of returning to North Da- after his business in going to Minne- apolis had been completed. If instead of going to Minneapolis \to accomplish the purpose he had in mind he had remained in North Da- kota, going about the state from ing any place of permanent resi- dence within the state, his continued residence here certainly could not be questioned. The fact that he per- formed this work, or its equivalent, fram without the state, for the very reason that it could be accom- plished more efficiently and in his judgment more advantageously, can- not change the principle involved. ‘The cases are parallel. Testimony Is Positive We have the positive testimony of the respondent that he went to Min- neapolis for the definite purpose of getting another paper in this state; that he had no intention of chang- ing his residence, and had the inten- tion of returning when he succeeded in purchasing the newspaper. This is corroborated by the convincing testi- mony of about a dozen witnesses, whose integrity and veracity has not been and cannot be questioned, all showing statements and acts of the respondent made at that time to the effect that he was there but tem- porarily, that his business was to buy another North Dakota paper through agencies and concerns located Sparks vs. Sparks A want of jurisdiction in the court is alleged because of a want of resi- dence of the plaintiff husband in the state. ‘The plaintiff's domicile of origin was Tennessee. He had moved to Washington to accept employment. He states that he is subject to dis- missal and that he would feturn to Tennessee if dismissed. The lower court finding the hus- band’s domicile to be Tennesse: reversed and for the reason that: “The intention, however, to return to the domicile of nativity, or one acquired, must be fixed, absolute and unconditional. A mere floating in- tention to return at some future pe- riod or upon the happening of some uncertain event is not sufficient. The intent to return must not depend up- on inclination or be controlled by future events.” To make its ruling clearer the court adds the following: “We are not to be understood as who removes himself and family out, ‘charging the duties of an office to, ‘which he has been elected or ap- pointed, or for any other purpose, either for a definite or an indefinite pose of returnng to his home in this state, and who, by discharging the duties of a citizen and taxpayer of the state and exercising the privileges of a citizen, manifests his intention jto retain his citizenship and domicile here, loses his citizenship. 1 jnot the truth, and were under cir- | id conditions { essary that he should have the inten-|qualified to hold the office of gov-| ernor, under Section 73 of the Con- | kota, which intention he carried out! place to place investigating the pos-| sibilities of purchasing another news-{ paper, without having or establish-| e was’ holding that a citizen of "Tennessee, | turning to North Dakota. These statements were made and these things occurred at a time when there could be no motive or reason for falsi- fying or saying anything that was cumstances which must convince and compel anyone with an unbiased mind to believe in the absolute truthfulness of the re- spondent’s present claim and con- tention. ‘There can be no about re- spondent’s ability or qualifications to discharge the duties of governor, aside from the technical objection {made to his residence. He has had ‘exceptional experience in the new: paper business, he is thoroughly ac- quainted with the people of this state and their needs, he is a man of bril- liance, determination, and integrity, and is well equipped to give North Dakota an honest and efficient busi- ness administration. Stress Will of the People The people of North Dakota know Mr. Moodie, they were given the op- portunity to appraise his worth, and they have elected him their gover- nor by a substantial majority. It goes without saying that there would be keen disappointment if he should be displaced by one for whom the people did not vote for the office of governor at all. Tt is not necessary to go back of the year 1924 in reaching a decision upon the issue in this case. If it appears that respondent had the necessary residence prior to the election in 1934 to qualify for the office of gov- ernor, he is entitled to that office, otherwise not. It is true that re- spondent first lived in North Dakota and was editor of a newspaper in 1898, was linotype operator on the Grand Forks Herald in 1909, published a paper at Ray later in that year, was linotype operator on the Williston Herald in 1910, reporter on a Minot paper in the latter part of 1910 when he returned to the Grand Forks Her- ald as linotype operator, continuing in this capacity until June, 1911, and edited the Richland County Farmer in 1919 and 1920. We suggest that all this is corroboratory of residence in North Dakota and citizenship here in the fullest sense. His absences dur- ing this period were all of a tem- porary character, to gain the advan- tages of more lucrative employment, always returning to North Dakota where he finally permanently settled jin January, 1924, and he has lived there ever since. ‘The temporary ab- sences, one a vacation trip to Cali- fornia lasting a few months, and the other to Minnesota. which was pro- longed beyond respondent’s expecta- tions and plans to about a year and seven months, have not affected the permanency of his residence since he returned in 1924. Mention California Trip When respondent went to Califor- ‘nia in the fall of 1927, he says it was {for a vacation, and he intended to lreturn. He did return in the spring of 1928 and he says that he had the intention then of buying another North Dakota country newspaper, and he actually did this within a very short time after he got back. There is no substantial thing in the evi- idence to cast the slightest doubt upon the truthfulness of the testimony as to this vacation trip. Mr. Moodie became the owner and publisher of a paper in Mohall in 1928 and continued that paper until July, 1929, when he sold out and had ‘on hand $5,000.00, which he set aside as the capital to buy another country paper which he planned to purchase in North Dakota. Mr. Moodie is a man who had ex- tensive experience in the newspaper business in other states, as well as in| North Dakota. ‘He knew about news- per supply houses and agencies throughout the country, including the Twin Cities. He knew these Twin City houses and agencies were in con- stant contact, through traveling rep- resentatives, correspondence and business dealings, with all the news- papers of the Northwest. That they were in @ position to furnish reliable information from time to time with respect to country newspapers that might be for sale, and that negotia- tions for the purchase of the kind of newspaper that he desired could conducted advantageously through these houses and agencies. Left Goods at Mohall He left some of his household ef- fects with a brother-in-law at and stored the remainder at Minot, there being no storage facilities at Mohall, and he and his wife went to Minneapolis. He had no intention of moving per- manently to Minneapolis, or of es- tablishing nent residence there. At the time he went to Mine neapolis Mr, Moodie had the present and intention of continaee of the state for the purpose of dis-|Dakote and jformed them that he was in the field for ® North Dakota country news- paper, inquiring if there was then ‘any such “prospect open. There was ‘not, but he arranged so that he ‘would be advised whenever an oppor- tunity or opportunities of this kind On the! wi mained in Minneapolis, mi quires and receiving information papers. eceeded in buying an interest as Herald in February Moodle immediately transferred her| membership in the Wahpeton church to a church of her faith that was at Williston. After Mr. Moodie had been in Min- neapolis for a time he procured a po- sition with the Tribune as an edi- torial writer. The position was but temporary, and so understood and talked over by both he and repre- sentatives of the Tribune, and as- sociates of his in the editorial de- partment. The temporary character of this work was discussed with other newspaper men in Minneapolis with whom Mr. Moodie was acquainted. This appears from the evidence of eleven of these men, and by Mr. Moodie’s testimony. Times, places, and details are given in the testimony of these witnesses with respect to acts and statements of Mr. Moodie which show that he never had the slightest intention of changing his residence from North Dakota, and .| Proving conclusively that his resi- dence in Minneapolis was but tem- porary. Tried to Buy Newspapers During the same period he had con- versations and dealings with North Dakota newspaper men of the same character, and the sworn testimony of these men is before the court. One of these, Mr. Carlson, heard that Mr. Moodie wanted to buy a country paper, afd went to Minne- apolis on July 30, 1930, and saw Mr. Moodie. They talked about the pos- sibility of jointly buying the Walhalla Mountaineer, which they had heard was for sale, and Mr. Carlson was sent to Walhalla to make the pur- | to. chase, Moodie paying one-half the expenses of the trip. Mr, Carlson, — by his wife, made the ip. It was not possible to buy this Paper because it was held under lease by one Nelson. Thereupon Carlson went to Grafton and negotiated for the purchase of the News for Mr. Moodie. He found the plant run down and the price too high, and abandoned that purchase. He then went to Neche, hearing that. the paper there was for sale, but decided that the town was too small, Mr. Carlson reported these threc prospects and the results personally to Mr. Moodie at Minneapolis. Mrs. Carlson testified confirming the testimony of her husband and Moodie with respect to conversations between the Moodies and Carlsons in relation to Moodie’s intention to acquire a North Dakota paper, and reside in North Dakota, and the trips and negotiations for the purchase of the three papers just referred to. Rejected Montana Offer In August, 1930, Carlson had pre- sented to him an opportunity to buy @ paper in Montana, and another in South Dakota. He went to see Mr. Moodie and tried to get Mr. Moodie interested in these papers, but Mr. Moodie told Carlson that he did not want to buy any paper outside of North Dakota. . At this time Carlson told Mr. Moodie about the possibility of buy- ing the Williston Herald or an in- terest in it, and it was agreed that Carlson would get in touch with the owner and see what could be done. He did this, and again reported to Mr. Moodie that such a purchase could probably be made, and the price named by the owner. Moodie stated that he would take the mat- ter of this purchase up further, which he did, with the final result that he bought an interest and took charge and went to Williston with his fam- ily when the negotiations were com- pleted. The testimony of all these wit- nesses is to the effect that Mr. Moodie affirmed and re-affirmed repeatedly his intention to continue in the coun- try newspaper business in North Da- kota, that the people of North Da- kota were his kind of people, that he was acquainted and established there, that he was not interested in going into business in a large city, and that he was in Minneapolis just temporarily until he found the right kind of an opening and a newspaper that would be satisfactory to him. Negotiations Left Open Reverting to the plans of Mr. Moodie when he left Mohall, it appears that belne investigated three newspapers after he sold the Mohall paper and before going to Minneapolis. Two were at Crosby and one at Williston, the latter being the one he eventually purchased. He made atrip to Cros- by and had negotiations with the owners of the papers there and he went to Havre, Montana, to see the manager and part owner of the Wil- liston paper. Negotiations for these papers were left open, and Mr. Moodie kept in touch with these prospects while in Minneapolis with reasonable expectations and prospects of buying @ paper at some one of these places. By working at Minneapolis, Mr. Moodie was able to earn enough money to live on temporarily, and this enabled him to keep his capital {trom time to time about country | Moodie Even the courts and lawyers recog- nize that there is such a thing as temporary residence as distinguished | from a residence of such permanency as entitles one to vote. Certainly a layman may be excused for not be-! ing able to draw fine distinctions of | the law. If it be the contention of relator that the facts of registering and vot- ing in Minneapolis conclusively es- tablishes an intent to transfer legal residence to Minnesota, we deny that this is the law, and say as the au- thorities unanimously hold, that vot- ing is merely evidence to be consid- ered with the other facts and circum- stances in determining intent. Vote Was Pure Oversight The evidence given by Mr. Mocdie, when considered in connection with the other evidence to which refer- ence 1s made, clearly establishes that his voting was pure oversight. or due to misunderstanding of the law and inadvertance. He did not, as a mat- ter of fact, have any thought or sus- picion at the time of casting his vote that it might work an abandonment of his North Dakota residence. and had not the slightest intention of giving up that residence. He has al- ways been a man who took a keen in- terest in government, deeming it a patriotic duty of the citizen to vote. ‘His attention was called to this six months’ residence law by his asso- ciates in the newspaper business, and without considering the legal ques- tion involved, or thinking of the matter from a legal point of view, he voted upon the two occasions referred Respondent was not legally quall- fied to vote in Minnesota, but this was not the first time a man has innocently cast an illegal vote. And in view of the explanation the voting is immaterial to the issue in this case. As this court and other courts have said, such voting “is of no import- ance,” and therefore did not affect respondent's residence in North Da- kota. ‘The purpose of Section 71 of the constitution was to have men in the office of governor who are acquainted with conditions in the state and the needs of the people. Residence here would be an important factor, and so five years was decided upon as a minimum. See constitutional debates. In State 10 Years Therefore, one who has lived in the state continuously for upwards of ten years, with but two breaks, one last- ing four or five months and the other a year and seven months, the last of which absences occurred more than three and a half years ago, would certainly come within the spirit of the constitution. If he is disqualified it will be upon purely technical grounds. In this case the man is qualified far better than the average candidate would be, because he has been in the newspaper business in all of the imporiant sec- tions of the state, and the business is one that naturally keeps those engaged in it well advised of business and other conditions, A strict technical construction of the constitution in a case such as this would have no justification in logic or in fact. Authorities The decisions of this court and other courts of good standing, sus- tain the respondent in this action. Constitutionality of Section 71 In the first place, if Section 71 were given a strict technical construction, and respondent disqualified because the court thought that he lost his legal residence in North Dakota when he went to Minneapolis in 1929, we suggest that it, Section 71, would be violative of the respondent's rights under Section 14 of the Amendments to the Federal Constitution. This amendment prohibits the states from making laws which violate the priv- ileges of citizens of the United States, and requires equal protection of the laws. There does not seem to be much justification for making a classification of citizens who may be eligible to hold office which would bar one who has all the qualifications for the office from a practical stand- point, and permit another, perhaps less qualified, to fill the office. This being the holding simply because the man in the favored class may have a residence just long enough to meet the constitutional —_ requirements, whereas, the other, with much longer residence and experience, happened to have a short break in his resi- dence. Cases on Residence It is general law, in the absence of a statute, that a residence cannot be established without union of act and intent. One cannot establish a legal residence in a state other than the one in which he lives merely by form- ing the intention to do so, nor can he establish such residence by mere- ly going to such other state. This same principle is found In Section 14 C. L, It is there declared that a residence cannot be lost until another is gained, and that a resi- dence once established cannot be changed except by the union of act and intent. There is no ambiguity about the meaning of these provi- sions. Anyone can understand the tablishment of residence and the re- tention of residence must be gov- erned and determined by this stat- ute, so far as the general question ia residence may be merely ideal. Tipton vs. Tipton, 8 8& W. (KY.) 441, A person who goes from country to country with no intention of remain- ing, does not acquire a residence, but if he confines himself to one country or locality though not fixing upon some particular place, he can very properly be said to be a resident of that country or locality. Residence may therefore be in a particular spot or a wide area. It may be applied tg “a house, a precinct, a ward, a county, or a state.” Laughammer vs. Munter, 27 LRA, 330. The California statute defining residence is the same as the North Dakota statute. In Huston vs. An- derson, 78 Pac. 626, this statute was construed, and it was held that mov- ing to a new location without the intention of establishing a residence in such new location did not operate to change the residence of the party. The old location continued to be his residence even though he may not have had any house, room, or place therein that he could call his home. Same Peo vs. Connell, 28 Ill. App. 285. Sheehan vs. Scott, 79 P. 350 (Cal.) In Burke County vs. Oakland, 217 N. W. (N. D.) 643, the administration of the poor laws of this state was in- volved. It was contended that de- fendant was not a resident of the county in which he claimed relief as an indigent person. Union of Act and Intent The court referred to subdivision 7, Section 14, Compiled Laws, defin- ing how residence can be changed, namely: By the union of act and in- tent. That moving from one place to another with intent to abandon the old residence and establishing a residence at the new place is in law @ change of residence. Conversely, without such intent the old residence remains. The fact of voting in another town- ship to that of the township claimed by the defendant to be his residence was admitted. He said he voted in the other township because he hap- pened to be there at the time of elec- tion. This was all the explanation given, and it was accepted by the court as satisfactory. It appeared that defendant's work in the town- ship where he voted was seasonable, during the time of year when farm work was done. The defendant had voted at other times in the township where he was claiming his residence, and testified positively that he never established a residence anywhere else. The court held that in the light of this evidence the defendant had dis- proved any intention of establish- ing a home outside of the township where he claimed it was in the pend- ing action. It will be noted that Section 14 of the statutes referred to by the court in the above action, restates and re- affirms as the statutory law of this state the general rules of law with respect to residence. Among other things (1) that residence is a place where one remains when not else- where for work or other special or temporary purpose, (2) that there can be only one residence, and (3) a residence cannot be lost until an- other is gained. Cites Fargo Case tion of Fargo, 38 N. W. R. (Dak.) a farm nearby, but lived in Fargo In Gardner vs. Board of Educa-| itroversy arose in the fall of 1887, when plaintiff's chil- dren were refused admission to the Fargo schools. Decision by the ter- ritorlal supreme court was rendered in May, 1888. < Vote Not Important No particular weight was given by the court to the fact that plaintiff's last vote had been cast in Fargo, merely saying that if the vote had been challenged and refused, and the question came before the court, it must have been decided against him under the evidence. That ‘the fact son, 210 N. W. (Minn.) &, the fact that one claiming a homestead right in certain property had removed from such homestead to @ city, and within six months after his removal from the homestead, had registered and voted in the city, did not estab- lish conclusively that he had changed a Place of residence. The court sai “McKenna testified that he regis- tered as a voter in Minneapolis in the spring of 1923. The date of regis- tration was not fixed definitely, but, when asked whether it occurred in April, 1923, he answered in the af- firmative. Much is made of this cir- cumstance. Even if it had been un- explained, it would not be conclusive on the question of residence, Minne- sota, etc. vs. McCressen, 110 Wis. 316, 85 N. W. 1019, 84 Am. St. Rep. 927; Robinson vs. Charleton, 104 Iowa 296, 73 N. W. 616; Corey vs. Schuster 44 Neb. 269, 62 N. W. 470. But the cir- cumstance was explained, for McKen- na testified that, when he registered, Minneapolis was his temporary resi- dence, and he supposed he had @ right to vote there as long as he stayed there. Although he was mis- taken as to this, the explanation was reasonable, and entirely did away with the significance of his registra- tion as a voter.” One Fact Among Many “The act of voting at @ place other than that in which the homestead is located does not of itself conclusive ly prove a change of domicile and an abandonment of the homestead, but is simply ® fact to be taken in con- nection with other facts in aiding the court in determining whether or not the removal of the owner from the premises was permanent or tempor- ary, and its effect may be overcome by circumstances showing an intent to return.” 29 Corpus Juris, Section 409. In each of the following cases it was contended that voting estab- lished an intent to change residence, most of the cases being on the ques- tion of abandonment of hi but the principle is the same in all cases involving change of residence. In all these cases it was held that voting is not conclusive, that it is merely evidence to be with the other evidence on intent, and that the voting must be disregarded and was satisfactorily explained. Robinson vs, Charleton, 72 N. W. Ia.) 616. Cincinnati vs, Thompson, 48 8. W. (Ky.) 446. Campbell vs. Potter, 29 8. W. (Ky.) 139. Corey vs. Schuster, 62 N. W. Gleb.) Bank, 59 N. W. R. 433, the facts were that plaintiff had | 470. Mallard vs. during the school year, sending his| (Neb.) 511, (registering to one vote children to the Fargo schools. The contest arose over tuition, the Board of Education holding that plaintiff was not a resident of Fargo, and therefore not entitled to the free use of its schools for his children, ruling was sustained on appeal under the evidence introduced in the action, family in his dwelling house on the farm prior to the fall of 1885, and that was unquestionably his home This | It appeared, among other} things, that plaintiff lived with his; only.) In re Lydig's Estate, 160 N. ¥. &. 843, (registering to vote.) Fact of voting when overcome by other circumstances is of slight im- portance. 19 Corpus Juris, 436. Wolf vs. McGavock, 33 Wis. 516, It is respectfully submitted that this action should be dismissed and Tespondent Moodie held qualified to act as governor of the state of Narth Dakota, and place of residence. This being/ established it became incumbent to! show change to Fargo, or abandon- ment, to the satisfaction of the court. He had been renting a house in Fargo from the fall of 1885, where M. W. MURPHY, JOHN MOSES, M. A. HILDRETH, THIS IS THE DRESS THAT GOES TO PARTIES that there can be only one residence,| Make This Model at Home PATTERN 2106 1 hvac Alans This is the dress that goes to parties, and this is the dress that goes to church. The joy of its ruffly bertha, that runs all around the back and halts in front just where sleeves would begin! The fun of having no sleeves at all! And the dress-up city 13_NE 700. insettled residence) the acquisition of had Brittenham vs. Robinson, 18 Ind.}@ new domicile or s change of dom- > A. 602; 48 NE 616, {eile will be much more easily and jate- Ludlow vs. Wilbraham, 99 Mass. 587./ readily inferred than when one had ency Palmer vs. Hampden, 192 Mass. 511; the lavit 65 NE 817. the d bv State vs. Davis, 119 Mo. Ap. 439; of elections in the precinct e of SW 654. he has the and Vale vs. Superior School Dist. 55 ANNE and Neb. 317; 75 NW 835. em- Valentine vs. Valentine, 61 N. J. teins mis- 3 48 Atl, 593, styles t to 15 Gray, 349 Designs tion for every here Barton, vs. Irasburch, 33 Vt. 159. PRICE BOOK FIFTEEN and In Re Titterington’s Est. 130 In. 356; BUT WHEN ORDERED resi- 106 NW 761. ANNE ADAMS it or Hart vs. Lindsey, 17 N. H. 235; 43 ONLY TEN CENTS. e in ‘Winans vs. Winans, 205 Mass. 388; e 91 NE 204. White vs. Tennant, 31 W, Va. 700;